DePuy Hip Implant Lawsuit

Multidistrict litigation (MDL) is a legal procedure in the United States federal courts that allows multiple civil (as opposed to criminal) lawsuits to be consolidated under a single judge for the stage of the cases known as “discovery.” (Discovery is the trading of information that takes place before a trial begins.) The purpose of MDL is to avoid inefficient, duplicative discovery and inconsistent pretrial rulings, as well as to conserve resources for the parties, judiciary, and attorneys involved.

Approval required

Before MDL can take place, the Judicial Panel on Multidistrict Litigation (a panel of seven federal judges) must approve the consolidation. In deciding whether or not to approve MDL for a group of cases, the panel will determine whether there is at least one “question of fact” common to all the cases. A question of fact is a question that can be answered by using facts and evidence that establish proof. As an example, imagine a product liability case in which multiple plaintiffs claim they were injured by a medical device. A common question of fact in this case could be: “Was the medical device produced in accordance with the manufacturer’s own designs, or was there significant variation from those designs?” (There could be other common issues of fact as well, but there needs to be only one). If the panel decides that a common question of fact applies to all the cases, it likely will approve MDL.

On November 18, the Judicial Panel on Multidistrict Litigation will meet at Duke Law School in Durham, North Carolina and hear arguments about whether all lawsuits filed in U.S. federal district courts over the DePuy ASR hip recall should be consolidated and centralized in one court for the purpose of pretrial litigation. The complaints filed by plaintiffs in these cases all similarly allege that the ASR implants are defective, DePuy failed to adequately test them, and that DePuy failed to promptly recall the devices when a higher-than-normal failure rate was detected.

If MDL is approved, the panel must also decide in what federal court the litigation will take place. To date, a number of locations been suggested by plaintiffs, including the District of New Jersey, the Central District of California, and the Northern District of Illinois.

Objections

DePuy does not oppose MDL for the hip implant lawsuits, but argues that transferring them to the District of New Jersey under Judge Susan D. Wigenton is inappropriate because she is currently overseeing litigation stemming from a hip implant recall by Zimmer Holdings, Inc. DePuy believes that presiding over so many similar cases could cause confusion and unintended prejudice to all parties. Instead, the company has suggested that the litigation be transferred to the Northern District of Indiana or the Northern District of Ohio, both of which are close to DePuy’s headquarters in Warsaw, Indiana.